Applying for and obtaining an H-2B visa for temporary work in the United States follows specific requirements. There are different types of jobs for which an H-2B visa may be acquired and benefits and restrictions for holders.
For more information on H-2B visas or for help applying for an H-2B visa, contact Tucker, Nong and Associates right away. Our experienced H-2B visa lawyers will know exactly how to help you.
H-2B Visa Requirements
For an H-2B visa, it is the duty of the employer to demonstrate the need for H-2B visa holders is a short-term need that is necessary to handle jobs that are:
- seasonal
- intermittent
- one time only
- during peak times
The way they demonstrate is with documents such as contracts, project summaries and other such items. It is not the job that fits these categories, but the need for employees to perform the job.
Seasonal Jobs
A seasonal job is one in which you’re needed for a job that is generally in relation to the season of the year or a recurring need. An intermittent need is one in which you’re needed to perform labor for which permanent employees are not usually hired. A one-time need is a project for which the employer hasn’t previously had laborers for and won’t need again. It can’t be a short-term need due to a temporary event. Peak times mean there’s a need for temporary laborers to assist the permanent employees when demand is high.
Limitations of the H-2B Visa
There are limitations that are imposed on an H-2 visa. It is the employer’s responsibility to determine and ensure that all of the necessary legal qualifications are followed. Their need for foreign laborers has to be of a limited duration, and the need cannot be for a period that’s greater than one year. Whether the H-2B visa holder is in the United States or out of the country, the authorized time on the visa is counted. No one who is a dependent of a person who has an H-2B visa is permitted to work in the United States.
H-2B Visa Requirements
There are specific legal requisites for both employers and applicants that must be met for an H-2B visa to be issued. Employers in the United States are obligated by law to substantiate that the job they are hiring an H-2B visa holder to perform is not longer than a period of one year. They are also required to acquire the necessary certification, and they or their authorized agent is responsible for filing the application.
Employment Offer
If you would like to apply for an H-2B visa, you must have a valid employment offer for work that is considered temporary or seasonal and non-agricultural. This offer must be from an employer in the United States. You also have to show proof that you intend to go back to your homeland upon expiration of your visa.
Length of Stay
If you have an H-2B visa, you are allowed to remain in the United States for the time of your employment, which is shown on Form ETA-750A. Your original time frame can be one year or less, and you may be able to acquire extensions for a maximum of three years. If there is a case of extraordinary circumstances in which your employer will need you as a temporary laborer for more than one year, they can apply for the visa extension. Every application that is submitted will be reviewed and a decision made based on its own value. As an H-2B visa holder, you may apply for an Extension of Stay, but you have to have a justifiable reason for your request.
H-2B Dependents
If you are a holder of an H-2B visa, then your dependents, including your spouse and/or your unmarried children who are less than 21 years old have certain benefits and certain restrictions. One of those benefits is that they are given H-4 visas, which means they are allowed to be with you for the length of stay on your H-2B visa. In addition, while they are with you in the United States, they are permitted to pursue a course of study and are not required to submit an application for the F-1 student visa during their stay. However, as holders of H-4 visas, your dependents are not permitted to obtain employment in the United States. In order to pursue employment, they must apply and acquire a work visa.
Labor Certification
In order to employ seasonal or temporary laborers, an employer has to submit Form ETA-9142 to the United states Department of Labor so that they can receive permission. The employer has to substantiate that there aren’t any United States workers who are available to perform the labor and that using foreign laborers will have no negative impacts on the earnings or working environment of local workers who are employed in a similar position.
Limitations that apply to temporary labor certification include that it is unable to be transferred and is only valid for a specific employer and the employment offer which you’ve been given. In addition, temporary labor certification is only good for the specifications that are displayed on the certification. Job contractors are not generally approved for temporary labor certification because the jobs they offer are typically permanent. If contractors can prove a need for temporary workers, they may obtain H-2B status.
Other Important Facts
If you have an H-2B visa, you are allowed to utilize any employee benefits while performing temporary labor in the United States. You may travel in and out of the United States and also accept a different job if you receive an offer. You may undertake part-time study so long as it does not interfere with your temporary work. In addition, you are permitted to submit an application for a Green card while you’re a holder of H-2B status. You may also apply for a status change if you change jobs.
How we can help you
If you are an employer looking to hire employees using an H-2B visa or, if you have been offered a seasonal position by an employer, contact Tucker, Nong and Associates right away. Positions that use an H-2B visa are usually time sensitive, so it is important that the filing process goes quickly and is not delayed by careless mistakes.
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